Cann v Cann
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1721 |
| Date | 01 January 1721 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 520
LORD CHANCELLOR PARKER.
Referred to, Fane v. Fane, 1875, L. R. 20 Eq. 708.
[567] Case 165.-cann versus cann. [1719.] [Referred to, Fane v. Fane, 1875, L. R. 20 Eq. 708.] Lord Chancellor Parker. See more relating to this case, post, 723. Court refused to publish depositions de bene esse, in order to compare them with the depositions in the same cause, taken on an examination in chief. (As to publication of depositions de l/ene esse, see Harris v. Cott-erell, 3 Mer. 678. Teale v. Teale, 1 S. & S. 385. And see Bowden v. Hodge, 2 Swan. 258.) The plaintiff examined witnesses de bene esse, and afterwards examined them in chief, and the cause was heard; but the Court taking time to consider of it, and the defendant observing that some of the witnesses examined by the plaintiff to prove the will in question (which was by the plaintiff alledged to be made by Sir Robert Cann the defendant's father subsequent to that will under which the defendant claimed, who was the younger son of the said Sir Robert Cann), had confessed, that they would not swear the defendant's father did ever sign the said will, and that yet the same witnesses, when examined in chief, had sworn positively the said defendant's father Sir Robert Cann did sign the will, which pretended will was alledged by the plaintiff to have been suppressed by the defendant's mother-in-law, and by the defendant himself. The defendant having reason to believe, that the witnesses when examined de bene esse did not swear so fully as they had been prevailed upon to do when examined in chief, petitioned the Lord Chancellor, that these depositions de bene esse might be published, or at least that his Lordship would be pleased to order them to be brought before him for his inspection, which in this case his predecessors Lord Sommers and Lord Cowper had done, in order to satisfy themselves whether the cause which had slept so long as years, should proceed or no. And for the petition it was urged, that it could not be thought that the plaintiff himself should oppose this prayer, it being only to discover truth, which the plaintiff would [568] hardly own he was afraid should be discovered. That though this was not known to have been done before, yet the reason was, because it might be a wrong to the defendant to have these depositions published; for that the defendant would have no opportunity of cross-examining the witnesses which the plaintiff had examined de bene esse; but when the defendant himself desired to have these depositions published, volenti non fit injuria. Lord Chancellor: It is admitted on both sides, that what is now asked (viz. the publication of the depositions taken de bene esse) was never yet done; and it being without any precedent, there ought to be very strong reasons to prevail with the Court to do it. The reason why the Court allows the taking of depositions de bene esse, is either from a contempt of the party in not answering, and thereby preventing the joining of issue, or else where the party is in danger of losing his witnesses in case of death, by reason of sickness or age, so that there may be ground to apprehend their not living to be examined in chief, but if these witnesses do live and are examined in chief, their dispositions de bene esse shall fall to the ground, and are as it were buried, having answered the whole purpose for which they were taken. (See Phillips v. Caret*}, ante, 117.) 1 P. WMS. 569. CUDD V...
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